Note:
Decisions of a three-justice panel are not to be considered as precedent before
any tribunal.

ENTRY
ORDER

SUPREME
COURT DOCKET NO. 2005-364

JUNE
TERM, 2006

State of Vermont } APPEALED
FROM:

}

}

v. } District
Court of Vermont,

} Unit
No. 2, Rutland Circuit

Garrick B. Johnson }

} DOCKET
NO. 171-11-04 Rdcs

Trial Judge:
M. Patricia Zimmerman

In
the above-entitled cause, the Clerk will enter:

Defendant
appeals from a district court judgment suspending his automobile operator=s license following a civil
license suspension hearing. Defendant contends the court: (1)
mischaracterized his claims; (2) misplaced the burden of proof; and (3) failed
to make the requisite findings to support the judgment. We agree with
defendant=s third
contention, and therefore reverse and remand for further proceedings.

The material
facts are not in dispute. On November 18, 2004, at approximately 11:40 p.m.,

defendant was operating a vehicle
that struck a bridge in Poultney, Vermont. Defendant left the scene of the
accident, but was later located by an investigating officer, who transported
defendant to a police station for DUI processing. A breath test administered
at 2:12 a.m. registered a BAC of .117 percent. At a subsequent civil
suspension hearing the State submitted two affidavits from a State chemist,
Darcy Richardson, one attesting to the reliability of the DataMaster unit used
to determine defendant=s
BAC and the other calculating defendant=s
BAC at the time of operation by relating back from the DataMaster test result.
In determining the BAC at the time of operation, Richardson factored-in
defendant=s alcohol
elimination rate, which Richardson assumed to be .015 per hour, and assumed
that his last alcohol consumption was at least 30 minutes prior to operation.
Richardson calculated that, at the time of operation, defendant=s BAC was .155 percent.

Defendant also
submitted the affidavit of an expert chemist, Dr. Harvey Cohen, who based his
calculations on information provided by defendant that he had consumed a number
of shots of alcohol between 10:25 p.m. and 11:30 p.m.. Assuming that much of
the alcohol later measured by the DataMaster test had not yet been absorbed at
the time of the accident, and using a similar elimination rate of .015 per
hour, Dr. Cohen concluded there was a reasonable likelihood that defendant=s BAC at the time of
operation was less than 0.08 percent.

Defendant and
a friend testified at the hearing to the specific number of shots that
defendant had consumed and the time when he consumed then, and also produced
the shot glass in question to show its size. Richardson then testified in
rebuttal for the State. In light of defendant=s
testimony and the drinking pattern that it revealed, Richardson revised her
calculation to conclude that defendant=s
BAC at the time of operation was .127 percent. On cross-examination,
Richardson acknowledged that revising the amount of ounces per shot would yield
a BAC of .099 percent; that revising the time when defendant had his last drink
would yield a BAC of .089 percent; and that utilizing the lowest possible
elimination rate of .010 per hour would yield a BAC of .076 percent.
Richardson explained that while it was possible to have an elimination rate of
.010 per hour, the average was between .018 and .022, and that .015 was a
conservative average.

The court
subsequently issued a written decision, finding in favor of the State. The
court observed at the outset that the only contested issue was the relation
back of the breath test, and that it was undisputed that the statutory
relation-back presumption did not apply because the test was administered more
than two hours after the time of operation.[1]
Under a caption for Afindings
of fact,@ the court
recited a number of findings which restated Richardson=s and Dr. Cohen=s
various calculations of defendant=s
BAC. Under its Aconclusions
of law,@ the court
noted that the only scenario in which the State=s
expert calculated a BAC under .08 percent was utilizing an elimination rate of
.010, and observed that .015 percent was a Aconservative
average.@ The court
then stated:

The court
cannot conclude that the defendant has challenged the foundation facts for the
admissibility of the test result when related back based on a theoretical
possibility that the defendant might have an elimination rate of .010%.
Accordingly, the court finds that the defendant has not challenged the
reliability of the test result when related back. . . . The state has met its
burden of proof by a preponderance of the evidence.

Defendant
subsequently moved for reconsideration, asserting that the court had
mischaracterized his claims, misplaced the burden of proof on defendant, and
failed to make the requisite findings to support the judgment. The court, in
response, issued a brief entry order amending its conclusions to provide, Athe defendant did not have
any burden of proof,@
and otherwise denied the motion. This appeal followed.

Citing the
above-quoted language, defendant contends the court somehow misunderstood his
claims to be a challenge to the admissibility or reliability of the DataMaster
test results, or to require that he produce evidence to rebut the statutory
relation-back presumption. We agree that the language is confusing and
seemingly misplaced. Nevertheless, given the court=s clear initial recognition that the
presumption does not apply and that the Aonly
contested issue is the relation back of the breath test to the time of
operation,@ we are not
persuaded that the court applied an erroneous standard or burden of proof.

Defendant is
correct, however, in asserting that the court did not make clear and specific
findings that defendant=s
BAC was 0.08 percent or more at the time of operation to support its ultimate
conclusion that the state had met its burden of proof. While the court explained
in its conclusion that the BAC would be less than .08 percent only if processed
at a lower than average rate of alcohol eliminationCa proposition rejected by the court as
unfoundedCthe findings
omit mention of any BAC, proven by a preponderance of evidence, of .08 percent
or more at the time or operation. It is axiomatic that a judgment cannot stand
if the district court=s
Aconclusions are not
supported by the findings.@State v. Giard, 2005 VT 43, &
7 (mem.). Accordingly, we hold that the judgment must be reversed, and the
matter remanded to the district court to amend its findings or for further
proceedings consistent with the views expressed herein.

In a proceeding under this section, if there was at
any time within two hours of operating, attempting to operate or being in
actual physical control of a vehicle an alcohol concentration of 0.08 or more,
it shall be a rebuttable presumption that the person=s alcohol concentration was 0.08 or more at the time of operating,
attempting to operate or being in actual physical control.